Westchester Sick and Safe Time Leave

July 31st, 2019 | By Jules Halpern Associates | Employment Law, New York Law, Sick Leave Laws

The Westchester County Earned Sick Leave Law (“ESLL”) went into effect in late June 2019, and Westchester recently enacted the Safe Time Leave Law that goes into effect in October 2019. Both laws require employers to give employees time off for specific reasons relating to health and safety.

Earned Sick Leave Provisions

ESLL requires employers with five or more employees to provide at least 40 hours of sick leave per year to eligible employees. Employees started accruing sick leave under the ESLL on July 10, 2019. Eligible employees include those who have worked in Westchester County for more than 80 hours in a calendar year. The employees must be paid for their earned sick leave at their normal rate of pay.

The sick leave is accrued at a rate of 1 hour for every 30 hours worked, or the employer may choose to frontload the earned sick leave by providing employees with 40 hours of sick leave at the start of each year. If the employer uses the accrual method, employees are permitted to carry over accrued but unused sick time to the following year. However, employees’ use of sick leave may be capped at 40 hours per year. ESLL provides that employees may use sick leave in increments, with a “minimum of four hours” of sick leave at a time.

Using Sick Leave

Under the ESLL, earned sick leave may be used for the following reasons:

  • An employee’s mental or physical illness, injury or health condition, need for medical diagnosis, care or treatment, or need for preventive medical care;
  • The care of a family member with a mental or physical illness, injury or health condition, who needs medical diagnosis, care, or treatment, or who needs preventive medical care;
  • The care of an employee or family member when it has been determined by public health authorities that the employee’s or the family member’s presence in the community may jeopardize the health of others because of his or her exposure to a communicable disease; and/or
  • The closure of the employee’s place of business or a day care or elementary or secondary school attended by an employee’s child where such closure is due to a public health emergency.

ESLL defines a family member as an employee’s child, spouse, domestic partner (as defined by New York State law), parent, sibling, grandchild, grandparent, and the child or parent of an employee’s spouse, domestic partner, or household member.

Employers’ Responsibilities under Sick Leave

Under ESLL, employers must provide employees with both a copy of the paid sick leave law and “written notice of how the law applies to that employee” at the commencement of the employee’s employment. This can be done by updating and redistributing an organization’s employee handbook.

Employers must also display a copy of ESLL along with posters in English, Spanish, and any other language deemed appropriate by Westchester in the future, in a conspicuous location in the workplace. Employers must also document employees’ hours worked and earned sick leave accrued and used for a period of three years.

ESLL provides employees with a private right of action for violation of the new law. Employees may recover the greater of $250 or three times the wages that should have been paid for each instance of undercompensated sick leave taken. Employees can also claim $500 for each instance in which employees have been unlawfully denied requested sick time. Employees may also reclaim back pay, reasonable attorneys’ fees, the costs of an administrative hearing, and other monetary or equitable relief.

Safe Time Leave Provisions

Westchester also enacted the Safe Time Leave Law, effective October 30, 2019, which requires eligible employees who are victims of domestic violence or victims of human trafficking to receive up to 40 hours of paid leave in any consecutive 12-month period. Safe Time Leave can be used to either move to a safe location or to attend or testify in criminal or civil court proceedings relating to domestic violence or human trafficking matter.

An eligible employee is any full-time or part-time individual who works for an employer in Westchester County for more than 90 days in a calendar year. The 40 hours provided under the Safe Time Leave Law is in addition to the 40 hours of paid sick time under ESLL.

An employee may request safe leave orally, in writing, electronically, or by any other means acceptable to the employer. The request must include the expected duration of the absence. If the employee anticipates using Safe Time Leave, the employee must make a good faith effort to provide advance notice and schedule the absence in a manner that does not unduly disrupt the operations of the organization.

Employers’ Rights and Responsibility under Safe Leave

Information about an employee or family member obtained for the purposes of utilizing Safe Time Leave is confidential. The information possessed by an employer regarding an employee or employee’s family member must be maintained both on a separate form and in a separate file from other personnel information.

An employer may require the employee to provide reasonable documentation that the safe leave is being used for a covered purpose. Documentation may include a court subpoena, police report, or an affidavit from a reputable organization known to provide assistance to victims of domestic violence or human trafficking.

The Safe Time Leave Law prohibits retaliation against an employee who uses Safe Time Leave. A “rebuttable presumption” of retaliation exists under the new law if an employee is subject to an adverse action within 90 days of the employee’s use of Safe Time Leave.

Conclusion

Westchester employers will need to review their materials to ensure that they are in compliance with ESLL and are gearing up for the rollout of the Safe Time Leave Law. Feel free to contact us if you or your management team need assistance developing or revising your sick and safe time policies.

Jules Halpern Associates LLC

Workplace and Education Law Advisors

Jules Halpern Associates LLC
JULES HALPERN ASSOCIATES LLC is a boutique law firm committed to serving our clients in all facets of their workplace issues. We provide personalized, practical advice that resonates with our clients’ business objectives.
212-658-9313
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Jules Z. Halpern

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